Basically as long as the cops had a reasonable and articulable suspicion that a crime was being committed, which would generally only take following your average driver a few miles, you have a legal stop. Once you have the dog on the car, you have the pretext for a search no matter what the dog actually does. Basically if the cops want to search your car, you’re not going to stop them. The key is not consenting to a search. If the dog comes out, roll with it, just make it clear you don’t consent to the search. Not much else you can do. The 4th Amendment has been dead letter for a long time. All searches are reasonable. Long live the War on Drugs.

32 Responses to “Cemetery Pulled Over. I’m Going to Guess DWJ.”

Our stop in Texas was due to DWM – Driving While Maryland. Can you imagine how bad that road trip would have been if I hadn’t told the rental place that I specifically did not want the SUV with Jersey tags?

Now I’m not a lawyer, and didn’t stay at that special hotel, but my understanding is that if you consent to a search, anything they find can be used. However, if they pull out a drug-sniffing dog then they can only use the drugs.

Oh, btw worst area for that is between Nashville and Jackson. Drove that route a lot bringing new hearses back from Ohio and used ones from PA and MD, always see more police there than anywhere else on the whole trip. TBI disassembled a brand new limo on us once for nothing. Caused damage we couldn’t recover on. I hate drugs, but I hate the “war” on drugs worse. Loss of freedom isn’t worth it, should legalize all of em, and let the druggies burn themselves out.

Police should be required to videotape their drug dogs very closely, and the recording should have to show a VERY clear indication that the dog is signaling them to the presence of drugs in order for them to have probable cause. There is absolutely no excuse not to do this, as video cameras are insanely cheap these days.

Courts recently ruled that the police can be filmed in the execution of their jobs. There is no reason to keep your camera phone holstered, build your own defense. If they say the dog indicated then they’d better be able to back it up.

There’s an article covering an interesting and disturbing study on dog searches here.

Before the searches, the handlers were informed that some of the search areas might contain up to three target scents, and also that in two cases those scents would be marked by pieces of red paper.

What the handlers were not told was that two of the targets contained decoy scents, in the form of unwrapped, hidden sausages, to encourage the dogs’ interest in a false location. Moreover, none of the search areas contained the scents of either drugs or explosives. Any “detections” made by the teams thus had to be false.
[…]
The findings, which Dr Lit reports in Animal Cognition, reveal that of 144 searches, only 21 were clean (no alerts). All the others raised one alert or more. In total, the teams raised 225 alerts, all of them false. While the sheer number of false alerts struck Dr Lit as fascinating, it was where they took place that was of greatest interest.

When handlers could see a red piece of paper, allegedly marking a location of interest, they were much more likely to say that their dogs signalled an alert. Indeed, in the two rooms where red paper was present and sausages were not, 32 of a possible 36 alerts were raised. In the two where both red paper and sausages were present that figure was 30–not significantly different. In contrast, in search areas where a sausage was hidden but no red piece of paper was there for handlers to see, it was only 17.

My conclusion? If the cop wants to search your car, he’ll communicate that to the dog (whether he is aware of doing so or not is another question), who will give an alert to make his human happy.

I was on a field trip with my daughter and we got to ride in a hay ride trailer with one of her friends’ father, who is a canine officer on a local police force. I was tweeking him, telling my daughter that if she was ever stopped by the police to just say “I don’t consent to a search”. The officer replied, “That’s ok, I’ll just get the dog.”

Min and mobo have it right, and you should probably ask the officer what the dog’s alert action is.

Sebastion; while in large part I understand your position, and your concerns are real, the 4th Am. is not nearly the “dead letter” you believe it is. As an attorney, both having been a prosecutor and now a defense attorney, the reality is that police are now MORE restricted than historically they have been. For most of our history, the exclusionary rule simply didn’t exist, and 4th Am. litigation was non-existant. Today, there is hardly a year go by without significant 4th Am. cases; most recently, Arizona v. Gant. There is broad agreement that police are, and should be, limited; we fight over where the lines are, not the principles.

All searches are most certainly NOT reasonable.

Your real concern is that all other things being equal, police are going to be believed in court over citizens. Well, yea, and that’s always been true, and likely always will be. The advice to have your own camera rolling is well taken.

I win 4th Am. cases here. Regularly. When police step over the line, courts will slap them back. But there is no way – as long as courts rely in human testimony, and that will not change this side of heaven – that police will not generally carry credibility into court. It’s simply a fact of life.

My advice? When you are being considered as a potential suspect, NEVER give a statement, and NEVER, EVER, UNDER ANY CIRCUMSTANCES consent to a search.

And be polite. Police generally (not always, of course, and the asses reflect on the majority) respond to how they are treated.

When I was 18 I moved to Knoxville and drove a car with not just Jersey plates but more than a couple of Grateful Dead stickers on it. Got pulled over a couple of times for the apparant crime of driving while Jersey. Aggressive cops where always disarmed by polite, respectful, witty, conversation. I never got angry, but never showed weakness or backed down and was clear where the line was (it helped that by that time I had already amassed significant – over a dozen cases – legal experience challenge and winning against cops in court).

The one time I got a bit nervous, we were driving to a Rodeo in NW Georgia. It was a known drug growing hotspot and the cops thought for sure they had a huge bust on their hands. Busted me at a drunk driving road block (I wasn’t, but had Jersey plates and Dead stickers). As they were beginning to search the car, they asked what we were doing there. My girlfriend opened up her mouth and said visiting her grandparents – who happened to be the former high school principle and the cops music teacher while growing up.

All of a sudden, I went from being a target to one of the crowd and every one was cool and we even saw them later that night at the rodeo.

As more and more of these stories are made known to the public, hopefully the police will lose that credibility with juries. They’ll be forced to excercise more discretion during traffic stops and pick their battles with a bit more common sense.

Don’t forget though, if it takes them long enough to get the dog there, and you haven’t been allowed to leave, legally the “detainment” has become an “arrest”. An arrest without probable cause is unlawful and won’t stand and any evidence after the point it becomes an unlawful arrest is inadmissable.

If they start threatening to get dogs simply ask “Am I free to go.” If the answer is yes, GTFO of dodge ASAP. If the answer is no, they start to cross the line into from detainment to arrest. The longer it takes to get the dog there, the more likely it will be deemed an arrest.

The caveat always applies though, you might beat the wrap but you won’t beat the ride. If a cop decides he wants you to go to jail, you’re going to jail, whether it sticks or not….

In search issues, it’s generally not with juries that the credibility issue of officers is key, it’s with judges. Search issues are litigated via motions to suppress, argued before judges (not juries), in contested hearings with testimony, including the officers’ testimony. An officer’s statements to the Court as to his probable cause, reasonable suspicion, etc. (as the case may be, depending on the facts) must be credible and within the limits that have developed over decades of case law (note, not 200+ years of case law; for most of our history in this country, we didn’t take much of the Bill of Rights seriously).

for most of our history in this country, we didn’t take much of the Bill of Rights seriously

Although in all fairness, I believe most of these cases we’re vaguely talking about are local, not federal. And until the post-Civil War 14th Amendment the Bill of Rights was principally a restriction on the Federal Government. E.g. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” most certainly did not apply to the states with official state religions back then; there have been arguments that the 2nd had to apply, if for no other reason than to allow the Feds to call upon the militia.

Then the Supremes judicially nullified the 14th (which fits your “didn’t take much seriously” point). And now we have the Supremes picking and choosing which parts, “penumbras” and “emanations” they’ll “incorporate” (and using a suspect approach that conveniently leaves the original nullification in place, something that Gura used in a clever fashion), with the 2nd Amendment only getting incorporated with McDonald v. Chicago last year.

Agreed, of course, with your additions of detail to what I glossed over.

[…] given that there is 100 years or so of precedent in that approach, even Scalia noted that at this point it’s a done deal, wrong or not.

I got the impression that it was much worse than that, for if the Supremes were to switch back to what the 14th Amendment really said, all 14th Amendment based incorporation precedents would have to be redone as zillions of criminals made appeals due to their being convicted at least in part on the basis of substantive due process incorporation.

But Gura’s challenge to the Supremes made incorporation of the 2nd by substantive due process look like a moderate compromise, or so some theorized. Certainly his challenge was a lot more radical than merely enforcing the 2nd on the states.

But why can’t a defendant, during the course of explaining the events leading to his arrest in his own words, make mention of the shaky circumstances surrounding the search? What about the opening and closing arguments? Can’t a good lawyer plant that seed into the minds of jurors in hopes that they might nullify?

Essentially – because the question of whether the search was legal is not a jury question; it is a question of law for the Court. Thus such a statement goes to a point that is irrelevent for the purposes of the jury as finder of fact.

At times it is done anyway; I’ve attempted same. But juries are instructed as to what they can consider, and what they can’t. And my experience is that they generally do a good job of following those instructions.

I’m cynical about a lot of things. But the jury system as we now practice it is not one of them.

And while juries can technically nullify, a court will NEVER let a lawyer argue to do exactly that. And yes, I’ve heard all about the FIJA. I’ve little use for them. Widespread use of arguments for jury nullification leads to at least as much, if not more, that is wrong than right.

To GMC70:
I am curious as to why you say never ever consent to a search. I used to own a huge old car that got me profiled and stopped often for supposed drugs (which I never do). I was once stopped on I-35 in Oklahoma twenty years ago and asked if I had any contraband. I said no except for an unloaded gun and separate ammo in the trunk. He asked if I minded having a dog sniff around my car. I said no, and in fact you can search it if you want (again, I never do drugs, so I wasn’t worried). He actually said no and after a second patrol car pulled up with the dog, my car was sniffed inand vain and I was sent on my way and told to make sure I had more spacing when I pulled back in front after passing [yeah right, that’s why he stopped me ;-)]. I got rid of that old boat of a car and bought a brand new one and never been stopped since. But again, if I know I’ve nothing for them to find, what is wrong with consenting to a search? Seriously, I’d appreciate knowing. Thanks.
Arnie

I think mostly because no good can come of it. You might not use drugs, but what if the kid who redid you transmission left residue from the doob he was smoking in the ash tray? Or a previous owner from long ago left his stash wedged between the cushions of the back seat? It’s also not unheard of for cops to plant evidence. All these things have happened to people. If the search wasn’t consented to, and turns out to be illegal, it’s easy to get the case disposed of by having the state’s key piece of evidence suppressed. Otherwise you’re stuck arguing the drugs weren’t yours, which is harder to win.

See the answers offered. There is no good reason to consent to a search. It cannot help you, and can only hurt you.

When I trained officers, I routinely told officers that although they can ask for consent to search a vehicle (which is what we’re talking about here) without any cause, I’d prefer that they have a reason to ask. It need not be much, certainly nothing that rose to the level of probable cause. But if officers get in the habit of asking for consent willy-nilly, the courts will bar the practice, and a lot of good police work could well be lost. I have no problem with officers asking, and if the answer is no, respect it and wave goodbye.

Officers have to understand that courts step in and restrict officers when officers overstep their authority. Don’t push that line, simply because you can, or you may find that the courts will move the line.

Already happened in NJ. It is unconstitutional in NJ for a police officer to request consent to search a vehicle in the course of a traffic stop our even while rendering assistance to a disabled vehicle without reasonable and articulable suspicion.
I believe the argument rests on the NJ constitution, so this may be of limited use out of state. Google found me the case references a woke back, I don’t have them to hand, not bring employed in the legal field.

Gentlemen, thank you all very much for your counsel! I was especially enlightened by the videos on remaining silent. I must confess surprise at finding out that law enforcement officials seem more interested in a conviction than in actual innocence or guilt. Lying and tricking suspects into false confessions, planting false evidence: they don’t show that part on “Law and Order.” I hate being in an us vs. them relationship with those sworn to “serve and protect” me, but I don’t want be a “stupid client” either. Thank you gentlemen.

I’d just mention, it doesn’t need to be taken to ridiculous lengths. I mean, if a cop pulls you over and asks “Have you had anything to drink tonight,” and you don’t answer, you’ll probably get a sobriety test. My feeling is to understand they just aren’t your buddies. Be polite, stick to simple answer, yes/no if possible, and don’t say anything incriminating.

I’ve had two non-traffic adversarial encounters with the police, and neither was really helped by anything I said to the officer, other than talking down the one cop after my friend got adversarial. Both times the cops were basically annoyed that they hadn’t apprehended Sumdood, and were trying to determine if there was something other than the very minor violation (dead brake light in one car, and trespass in a public park after dusk in the other) they had me on. Both times remaining silent on the pertinent subject while engaging, essentially, in small talk, I believe helped individualize me. I’m older and wiser now, and might not take the same approach these days, though, since both events could have gone a lot worse.